NA v Secretary of State for Work and Pensions (BB)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley |
| Neutral Citation | [2019] UKUT 144 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Bereavement,death benefits,Human rights law,death benefits - bereaved parents allowance,death benefits - bereavement payments,Human rights law - article 14 (non-discrimination),Wikeley,N |
| Date | 30 April 2019 |
| Published date | 28 May 2019 |
NA v Secretary of State for Work and Pensions (BB) [2019] UKUT 144 (AAC)
CG/164/2018
1
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.
The decision of the Worcester First-tier Tribunal dated 21 September 2017
under file reference SC024/17/05431 involves an error on a point of law. The
First-tier Tribunal’s decision is set aside.
The Upper Tribunal can re-make the decision under appeal. The decision that
the First-tier Tribunal should have made is as follows:
The Secretary of State’s decision of 12 October 2016 is revised. The
Appellant is entitled to a bereavement payment and widowed parent’s
allowance.
This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and
Enforcement Act 2007.
REASONS FOR DECISION
Introduction
1. This case is about whether the surviving partner of a religious marriage
recognised in Pakistan, but not recognised in England and Wales, is entitled to a
bereavement payment and widowed parent’s allowance.
2. I held an oral hearing of this appeal at Field House on 5 April 2019. The
Appellant was represented by Ms Celia Rooney of Counsel, acting pro bono and
instructed by the Free Representation Unit. The Respondent was represented by Ms
Zoë Leventhal of Counsel, instructed by the Government Legal Department. I am
indebted to them both for their incisive submissions, both oral and written, which
have been of great assistance in determining this complex appeal.
3. It would also be remiss of me not to recognise the efforts of the Appellant’s
nephew throughout these proceedings, who has been fighting his aunt’s corner from
the very outset of this matter and represented her before the First-tier Tribunal. If it
were not for his commitment and tenacity, I very much doubt we would be where we
are today.
4. In the interests of clarity, I refer throughout this decision to the Appellant’s late
husband as her husband, even though this may appear from one standpoint to beg
the question which lies at the heart of this appeal. I adopt this course as under both
the law of Pakistan and under Islamic law there is no argument but that the Appellant
was his wife and is now his (sole surviving) widow. In some passages, to aid clarity, I
refer to him simply as Mr A. I also use the expression “‘lawful’ widow” in discussion
from time to time. This is a shorthand term to describe the surviving (female) spouse
of a marriage which is recognised by the law of England and Wales. A ‘lawful’ widow
is not necessarily the same as the widow of a monogamous marriage. This is
because, as will be seen, our law does recognise polygamous marriages in certain
circumstances and for certain purposes. From time to time I also use the term
“‘ordinary’ cohabitant” – by this I mean a person living with another as husband and
wife without any attempt to have that relationship formalised, e.g. through a religious
ceremony, whether here or abroad.
NA v Secretary of State for Work and Pensions (BB) [2019] UKUT 144 (AAC)
CG/164/2018
2
5. I should also add that I held an earlier hearing of this appeal on 11 February
2019, but without full argument. That hearing was adjourned to 5 April 2019 as the
Secretary of State had not had sufficient time to prepare a full response to the human
rights submissions advanced on behalf of the Appellant. The Secretary of State
subsequently applied for a stay of the present appeal pending the outcome of judicial
review proceedings in the Administrative Court in the case of R (on the application of
Rehman) v Upper Tribunal and Secretary of State for Work and Pensions
(CO/3704/2017). I refused that application in a ruling dated 4 March 2019 for three
main reasons: (i) although both cases concerned Islamic marriages, the marriage in
Rehman had taken place in England, so raising issues of validity under the Marriage
Act 1949 which did not arise in the present appeal; (ii) the special regulations
governing polygamous marriages and social security benefits were not in issue in
Rehman; and (iii) Rehman was exclusively concerned with widowed parent’s
allowance, whereas the instant appeal is about both widowed parent’s allowance and
bereavement payment.
The factual background to the present appeal
6. The underlying facts in this appeal are not in dispute. The Appellant’s husband,
Mr A, was born in Pakistan in 1958. On 1 July 1976, at the age of 17, Mr A, then a
bachelor, married his first wife, Ms B (who was also 17), in Pakistan. Later the same
month, and having turned 18, Mr A moved to the UK to live with his parents. In 1979
Ms B moved to the UK to join him. Although there were doubtless visits to Pakistan, it
seems that Mr A made his home in the UK. In 1993 he became a British citizen.
However, in 2001 he pronounced a talaq, with the intention of divorcing Ms B, and
the couple separated. On 28 November 2008 Mr A married the Appellant in Pakistan.
A year later, following proceedings in the Birmingham County Court, Mr A obtained a
decree absolute of divorce from Ms B. In December 2010 the Appellant moved to the
UK to live with Mr A. In May 2011 Ms B died. Mr A and the Appellant had a daughter,
born in November 2012, but on 18 July 2016 Mr A died. By that date the Appellant
had been married to Mr A in the eyes of Islamic law for eight years and had been his
only living spouse for five years. On that basis the Appellant claimed bereavement
benefits. After initially deciding that she was entitled to such benefits, one of the
Secretary of State’s decision-makers issued a revised decision refusing the
Appellant’s claim.
The First-tier Tribunal’s decision
7. The First-tier Tribunal (FTT) dismissed the Appellant’s appeal. This was on the
basis, according to the decision notice, that “the appellant’s marriage was a
polygamous marriage when entered into and is therefore not valid under English
law”. The essence of the FTT’s reasoning was captured in paragraph [15] of the
subsequent statement of reasons:
“In accordance with the Marriage Act 1949 the marriage to the appellant in 2008
was polygamous as at the date of his second marriage he was still married to his
first wife, that first marriage being valid under Pakistani law and accepted as
valid under English law as it was at the date of the marriage monogamous and
took place in accordance with the law of Pakistan. The marriage to the appellant
in 2008 was polygamous as [Mr A] was still married to [Ms B] and as English law
does not recognise polygamous marriages and we are satisfied on the facts set
out above that [Mr A] was clearly domiciled in the UK at the time of the second
marriage and did not have the capacity to enter into the polygamous marriage as
these are invalid when entered into under English law.”
8. The FTT accordingly concluded that “the appellant was not lawfully married to
[Mr A] and the fact that [Mr A] subsequently divorced his first wife under English law
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JG v Secretary of State for Work and Pensions (BB)
...of such remedy as Parliament might subsequently provide. Reliance is placed on NA v Secretary of State for Work and Pensions (BB) [2019] UKUT 144 (AAC) at [115] and [116]. Reference is made to the similarity between widowed parent’s allowance and bereavement support payment which replaced i......